Mahadeo Shankar Mirase And ... vs State Of ...
2017 Latest Caselaw 7147 Bom

                    apeal545.02.J.odt                         1




                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      NAGPUR BENCH, NAGPUR

                                       CRIMINAL APPEAL NO.545 OF 2002

                    1]      Mahadeo Shankar Mirase,
                            Aged about 25 years.

 As per Court's     2]      Shankar Loduji Mirase,
   order dtd. 
10.04.17 appeal             Aged about 53 years.
abate as against 
appellant no.2.
                            Both Residents of Kinkhed,
                            P.S. Karanja, District Washim. ....... APPELLANTS

                                                      ...V E R S U S...

                             State of Maharashtra, through P.S.O.
                             Police Station, Karanja, 
                             District Washim.                          ....... RESPONDENT
                    -------------------------------------------------------------------------------------------
                             Shri Sumit Joshi, Advocate holding for Anil Mardikar,
                             Advocate for Appellants.
                             Shri N.B. Jawade, APP for Respondent.
                    -------------------------------------------------------------------------------------------

                    CORAM:  ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 31.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 14.09.2017

1] Challenge is to the judgment and order dated

27.08.2002 in Sessions Trial 98/1999 whereby the appellants are

convicted of offence punishable under section 306 and 498-A read

with section 34 of the Indian Penal Code. The sentence imposed is

rigorous imprisonment for five years for the offence punishable

under section 306 read with section 34 of the I.P.C. and payment

of fine of Rs.500/- and rigorous imprisonment for two years and

payment of fine of Rs.200/- for offence punishable under section

498-A read with section 34 of the I.P.C. The appellant 2 is the

father of appellant 1 (hereafter referred to as "the accused"),

during the pendency of the appeal, the appellant 2 expired and his

appeal stands abated.

2] Heard Shri Sumit Joshi, the learned counsel for the

accused. Shri Sumit Joshi submits that while suicidal death of the

deceased Swati is not in dispute, the prosecution has not

established the necessary ingredients of section 306 and section

498-A of the Indian Penal Code. He would submit, that the

evidence is not confidence inspiring and is very vague. That apart,

the grievance, if any, of the deceased was apparently as regards

the conduct of her father-in-law (deceased appellant 2) and not

her husband (accused). Shri Sumit Joshi would submit that

admittedly Swati was to be married to some other person.

Swati and the accused were however, in love and they eloped.

The police came into picture and brought the couple back to the

village. Their marriage was solemnized immediately thereafter.

The family of Swati was not happy and as is admitted by the

father of the deceased Swati, the elopement and marriage with

the accused was not at all taken kindly by Swati's family.

The learned counsel would submit that it is not unknown that the

traumatic death of the daughter or the sister and the perception

that the husband and/or the family members of the husband are

somehow responsible for the death, leads to unwarranted and

unexaggerated accusations. The learned counsel would further

urge that in the factual matrix of the present case, the evidence of

the family members of Swati must be subjected to closer scrutiny

and caution since they did not accept the marriage and the

instinctive reaction to somehow blame the accused for the death is

a real possibility.

3] Shri N.B. Jawade, the learned Additional Public

Prosecutor would support the judgment impugned and contend

that the prosecution has established the offence punishable under

section 498-A and 306 of I.P.C. beyond reasonable doubt.

4] The prosecution has examined five witnesses P.W.1

Ashok Bhivaji Patre is the father of the deceased, P.W.2

Shakuntalabai w/o Baliram Patare is the paternal aunt of the

deceased, P.W.3 is the cousin of the deceased, P.W.4 Sukhdeo

Ramkrishna Patre is the person who took the deceased to the

hospital. P.W.5 Tarachand Kashiram Kilewale is the Investigating

Officer. The defence examined one Gulab Anandrao Chavan to

prove a conversation between the deceased Swati and her mother

Indubai to the effect that Swati's mother told Swati not to come to

her house and that if Swati does come to her parental house, she

(mother) will cause some harm to herself (mother). D.W.1 Gulab

Anandrao Chavan states that the said conversation took place near

the well which he was passing while going to his field.

5] P.W.1 states that Swati and the accused fell in love

and married each other. The deceased Swati was treated well for

a month. Thereafter, the accused and father-in-law started

ill-treating Swati. The father-in-law (deceased appellant 2) used

to tell Swati that she did not know her work, Swati used to be

denied food, Swati used to disclose the ill-treatment to P.W.1

when she used to visit the parental house. P.W.1 deposes that 2 to

3 months prior to the incident the relative of appellant 2

(uncle/mawsa) reached Swati to the residence of P.W.1, she was

ousted from the matrimonial home, Swati told P.W.1 that her

father-in-law had asked her to leave as she did not know work and

that her father-in-law told her that he will find some other bride

for his son. P.W.1 states that Swati also told him that her husband

was beating her. P.W.1 states that Swati resided at her parental

house for about 15 days and then was persuaded to reside with

the husband. Swati brother Ramrao reached Swati to her

matrimonial residence and Swati died two months thereafter.

P.W.1 admits that initially Swati was betrothed to some other

youth from village Parwa and that the said youth was in police

service. He admits that Swati and accused eloped and were

brought back by police. He admits that he and his wife were

against Swati marrying the accused. He further admits that his

wife was not on visiting terms with Swati. He admits that the

deceased was also lending a helping hand in the agricultural work

in the field of the accused. The statement in the

examination-in-chief that Swati was reached to the parental house

by a relative of her father-in-law is brought on record as an

omission. The statement that Ramrao reached Swati to the

residence of the accused is also an omission. P.W.1 admits that he

and family were felt that they were defamed as Swati refused to

marry boy chosen by the family. P.W.1 denies the suggestion that

his late wife was threatening Swati that Swati should put an end

to her marriage with the accused or else she (Swati's mother) will

commit suicide. P.W.2 Shakuntalabai is Swati's aunt and states in

the examination-in-chief that Swati was ill-treated by the accused

and father-in-law. She states that the father-in-law used to tell her

that he will find some other bride for accused. She states that the

accused was also beating Swati. Swati was kept outside the house

throughout the night and was not provided any food. She claimed

that Swati used to confide with her the details of the ill-treatment.

She states that two months prior to the incident Swati was ousted

from house after ill-treatment and beating. She claims that Swati

was residing with her (P.W.2) for a month. The villager

intervened and advised the accused to treat the Swati property

and thereafter Swati was reached to the house of the accused.

In the cross-examination, P.W.2 admits that she was meeting

Swati only when both of them came to the common well to fetch

water. Several other women also came to the well. She admits

that Swati was to be married with someone else and in view of

love affair and elopement of Swati and the accused, the marriage

settled by Swati's family did not materialize. She admits that after

Swati married the accused, the family stopped visiting the house

of the accused. She denies the suggestion that Swati's family

desired that Swati seek a divorce from the accused. She denies the

suggestion that Swati did not come and reside with her.

P.W.3 Shantaram Ramkrishna Patre, cousin of the deceased, states

generally and vaguely about the accused and his father ill-treating

Swati. However, in the cross-examination he admits that after

marriage Swati did not meet him personally till her death. In view

of the said admission, whatever is said in the examination-in-chief

must be ignored as hearsay. P.W.4 Sukhdeo Ramkrishna Patre

only states that he and others went to the field upon coming to

know that Swati consumed poison and when Swati was asked as

to what happened she told P.W.4 that she had consumed endrine.

P.W.4 took Swati to the hospital in a bullock-cart. Swati however,

expired on way to the hospital.

6] The evidence of P.W.3 and P.W.4 does not take the

case of the prosecution any further. The evidence of P.W.3 is

hearsay since he admits that he did not meet Swati at all after the

marriage till her death. P.W.4 is not a material witness on the

aspect of cruelty. The prosecution case hinges on the evidence of

P.W.1 (father) and P.W.2 (aunt) of the deceased. The evidence of

P.W.1 and P.W.2, as is rightly contended by the learned counsel

for the accused, must be evaluated closely on the anvil of caution.

Concededly, they were absolute unhappy when Swati eloped with

the accused. Their relationship with the accused and his family,

was not healthy. The evidence of Shakuntalabai that Swati was

ousted from the matrimonial home and that she resided with her

(P.W.2) for a month and that the villagers intervened etc. is a

version which is totally inconsistent and contrary to the evidence

of P.W.1. It is not the case of the prosecution, that P.W.1 and

P.W.2 are residing in the same house. P.W.2 admits that she is

residing separately from Swati's father Ashok (P.W.1).

According to P.W.1, the deceased Swati was asked to leave her

matrimonial house by her father-in-law and Swati resided with

P.W.1 for 15 days and then his nephew Shantaram persuaded the

family and also Swati to cohabit with the accused. It is obvious,

that P.W.2 is not a reliable witness and her version that Swati

resided with her for a month is unbelievable. The deposition of

P.W.2 that the deceased was ill-treated, harassed or kept out of

the house etc. and that she was not provided with food is not

believable. Similarly, the evidence of P.W.1 that Swati was

ill-treated and was accused of not knowing were, is not confidence

inspiring. The accused and Swati were in love, they eloped.

The family of the deceased, according to P.W.1 felt defamed.

That, Swati refused to marry a person of their choice and that the

settled marriage did not materialize as Swati eloped with the

accused ensured that the relationship of P.W.1 and other members

of the family with Swati and the accused remained strained. I am

not persuaded to hold that the evidence is adequate to record a

finding that the deceased was subjected to cruelty within the

meaning of either clause (a) and (b) of explanation of section

498-A. Clause (b) does not come into play since it is not the case

of the prosecution that the alleged harassment or ill-treatment

was to coerce the deceased to fulfill an unlawful demand. It is

axiomatic, that the ingredients of section 306 of I.P.C. are not

established since the prosecution has not proved that the accused

had the mens rea or that the conduct of the accused was such that

the deceased was driven to commit suicide or that the accused

must be attributed the knowledge that the consequence of his acts

or omissions would in every probability be that the deceased will

take the extreme step of ending her life. The sine quo non to

constitute offence under section 306 of Indian Penal Code that the

accused must have instigated the deceased to commit suicide, is

not established.

7] The accused has examined one Gulab Anandrao

Chavan D.W.1 to bring on record that the family of Swati hated

her and that while he was passing the common well he heard a

conversation between Swati and her mother.

8] I need not delve much on the evidence adduced by

the prosecution since I am satisfied that the prosecution has failed

to discharge the burden of proving the charge beyond any

reasonable doubt.

9] The learned counsel for the accused has rightly relied

upon the Atmaram s/o Raysingh Rathod vs. State of Maharashtra

(2013) 12 SCC 286 and in particular the following observations of

the Hon'ble Supreme Court in paras 9, 10, 11, 12, 15, 17 and 19

which read as under:

9. Section 498-A IPC and Section 113-A of the Evidence Act, 1872 are extracted hereinbelow:

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-- For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person

related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

"113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman hand been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-- For the purposes of this section, 'cruelty' shall have the same meaning as in Section 498- A of the Penal Code (45 of 1860)."

10. A reading of Section 498-A IPC would show that if the husband or relative of the husband of a woman subjected such woman to cruelty, they shall be liable for the punishment mentioned therein. Moreover, the Explanation to Section 498-A IPC defines "cruelty" for the purpose of Section 498-A IPC, to mean (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. A reading of Section 113- A of the Evidence Act, 1872 will show that for the purposes of Section 113-A of the Evidence Act, 1872, "cruelty" shall have the same meaning as in Section 498-A IPC. Hence, to convict a husband or any relative of the husband of woman or to draw up presumption as to abetment of suicide by a married woman by her

husband or any relative of her husband in case of suicide committed by a woman within a period of seven years from the date of her marriage, there must first be evidence to establish that such husband or the relative of her husband committed cruelty of the nature described in clauses (a) or (b) of the Explanation to Section 498-A IPC.

11. Therefore, the main question, which we have to decide in this case, is: whether there is any such evidence to establish beyond reasonable doubt that the appellant had subjected his second wife Purnabai, to cruelty either of the nature described in clause (a) or of the nature described in clause (b) of the Explanation to Section 498-A IPC.

12. It is not the case of the prosecution in this case that the appellant had subjected Purnabai to cruelty of the nature described in clause (b) of Explanation to Section 498-A IPC, as there is no allegation in this case that the appellant had harassed Purnabai with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or that he subjected Purnabai to harassment on account of failure by her or any person related to her to meet such demand. We have, therefore, only to decide whether the appellant treated Purnabai with cruelty of the nature described in clause (a) of the Explanation to Section 498-A IPC.

15. The aforesaid evidence of PW 1 establishes that the appellant used to beat Purnabai and was not giving her food before he executed the undertaking in Ext. 47 on 17-4-1988. The drowning of Purnabai took place three months thereafter on 15-7-1988. For holding the appellant guilty of the offences under Sections 306 and 498-A IPC, there must be evidence of wilful conduct of the appellant towards Purnabai soon before her drowning which could have driven her to commit suicide and this is what PW 1 has said in his examination-in-chief on what happened before the drowning of Purnabai:

"Thereafter I took Purana to Bhandara in the house of Accused 1. Thereafter I brought her back to my house for rasai. She complained that there is ill-treatment going on though it has lessened. She complained to me that the accused was not providing her with meals and used to beat her. She also told that as the accused do not give her food she begs for food from others and even then I reached (sic sent) her with the hope that everything will be settled. Later on I received the news of her death. On hearing the death news of Purana I went to Bhandari. I found Purana and her daughter dead due to drowning in the well. I enquired there at Bhandarai and I came to know there was lot of beating given to Purana and hence she died on fall in the well (sic). I came to know that there was accidental death. I also came to know that Purana died along with her girl after falling in the well due to ill-treatment received by her from the accused persons. Then I went to Rural PS, Pusad and reported the matter. The report now read over to me is the same. It's contents are correct. It bears my thumb impression. It is at Ext.49. Printed FIR shown to me also bears my signature. It is at Ext. 50. Police recorded my statement."

17. It is thus clear from the evidence PW 1 and from the FIR lodged by him that he had no personal knowledge about the cause of the death of Purnabai but on enquiry at Bhandari he had come to learn that there was lot of beating of Purnabai and no food was given to her and for such ill-treatment she had jumped into the well with her daughter.

19. From the discussion of the aforesaid evidence on record, we find that the prosecution has not been able to prove beyond reasonable doubt that the appellant was guilty of any wilful conduct which was of such a nature as was likely to drive Purnabai to commit suicide. Rather, there appears to be some evidence in the depositions of PW 1 and PW 4 (father and sister of Purnabai) that Purnabai was sad due to a daughter being born to her and a son being born to the

first wife of the appellant. These circumstances may have driven Purnabai to commit suicide by jumping into the well along with her daughter. Such a consequence from the mental state of Purnabai cannot be aground for holding that the appellant was guilty of cruelty within the meaning of clause (a) of the Explanation to Section 498-A IPC. We, therefore, hold that the presumption under Section 113-A is not attracted and the appellant cannot also be held guilty of abetting the suicide of Purnabai. We have to bear in mind this note of caution in State of W.B. v. Orilal Jaiswal (SCC p.90, para 17)

"17. ... the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

10] The judgment impugned deserves to be set aside and

is hereby set aside.

 11]              The appeal is allowed.



 12]              The bail bond stands discharged.








  13]              The   fine   amount   paid,   if   any,   paid   by   the   accused

  shall be refunded to him.



                                                         JUDGE



NSN